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Gorman v. City of Olathe

United States District Court, Tenth Circuit

November 5, 2013

JASON GORMAN, Plaintiff,
v.
CITY OF OLATHE, KANSAS, et al., Defendants.

MEMORANDUM AND ORDER

RICHARD D. ROGERS, District Judge.

Plaintiff filed a complaint on May 22, 2013 alleging that he was terminated from his job as a police officer without a name-clearing hearing in violation of the Due Process Clause of the Constitution and 42 U.S.C. § 1983. Defendants are: the City of Olathe, Kansas; J. Michael Wilkes, the City Manager for Olathe; and Steve Menke, the Chief of Police for Olathe. This case is before the court upon defendants' motion to dismiss and plaintiff's motion to amend.

The motion to dismiss, which the court shall treat as a motion for summary judgment, raises a statute of limitations issue. The motion to amend seeks to obviate that issue, which is whether plaintiff filed this action within two years of learning that he had been denied a name-clearing hearing in relation to his job termination. The original complaint asserted erroneously that defendants failed to give plaintiff a name-clearing hearing in "March 2012." Defendants filed their motion to dismiss asserting that the actual date was March 7, 2011 and, thus, plaintiff's § 1983 claim is untimely because it was filed more than two years after the claim accrued.[1] Plaintiff has filed a motion to amend the complaint to allege that he was denied a name-clearing hearing on August 11, 2011, which is within two years of the date plaintiff filed this action. Defendants oppose plaintiff's motion to amend on the grounds of futility. After careful review, the court concludes that the proposed amendment is futile and that this case should be dismissed because plaintiff knew or should have known of the alleged due process violation more than two years before filing this lawsuit and because there are no grounds recognized in Kansas for tolling the limitations period.

I. SUMMARY JUDGMENT STANDARDS

Summary judgment is warranted if the materials on record show that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.CIV.P. 56(a). The court views "all of the facts in the light most favorable to the non-movant and reasonable inferences from the record must be drawn in favor of the non-moving party." Piercy v. Maketa , 480 F.3d 1192, 1197 (10th Cir. 2007). From this viewpoint, the court attempts to determine whether a reasonable jury could return a verdict in favor of the non-moving party. Bones v. Honeywell Int'l, Inc. , 366 F.3d 869, 875 (10th Cir. 2004). "While we view the record in the light most favorable to the non-moving party, that party must still identify sufficient evidence requiring submission to the jury to survive summary judgment." Piercy , 480 F.3d at 1197. In other words, the court may consider evidence produced by the moving party as well as the absence of admissible evidence in favor of an essential element of the non-moving party's claim. Adams v. Am. Guar. & Liab. Ins. Co. , 233 F.3d 1242, 1246 (10th Cir. 2000).

II. UNCONTROVERTED FACTS

The following facts appear to be uncontroverted. After his February 8, 2011 dismissal as a City of Olathe police officer, plaintiff filed an "appeal request" on February 15, 2011. The "appeal request" asked for reinstatement, backpay and restoration of benefits. On the same day, in a letter referencing plaintiff's "appeal of termination, " plaintiff's attorney sent a letter to defendant Wilkes, the City Manager, asking for various documents and demanding that plaintiff's "name-clearing hearing" comply with due process requirements. Thus, it appears that from the beginning that plaintiff combined his appeal of his termination with his request for a name-clearing hearing. The letter asked for a hearing during the week of March 7, 2011.

In response, on February 18, 2011, defendant Wilkes informed plaintiff's attorney that city regulations required the hearing to be conducted by March 2, 2011, that no further documentation would be provided and that city appeal procedures did not permit legal representation of any party during the hearing process. On February 25, 2011, plaintiff's counsel replied with a letter that accused Wilkes of failing to follow the document production policies used in previous appeals involving police officers and of failing to follow due process requirements.

On March 1, 2011, plaintiff's attorney again wrote to defendant Wilkes demanding various materials he deemed extremely important to plaintiff. The letter referenced "Appeal of Termination of Officer Jason Gorman" at the beginning and the body of the letter used the terms "due process hearing" and "name-clearing hearing." The correspondence stated that because defendants had not provided the necessary information to plaintiff, plaintiff would not participate in a hearing scheduled on March 2, 2011.

Plaintiff did not appear at the March 2, 2011 hearing and plaintiff was informed via a letter by the hearing officer, Chris Kelly, that the hearing regarding his "appeal" commenced without his appearance and then was continued to March 7, 2011. Mike Price, an assistant city attorney, wrote plaintiff's attorney on March 3, 2011 and warned that if plaintiff failed to appear on March 7, 2011 "the hearing will be closed and no further appeal will be heard."

On March 4, 2011, plaintiff's attorney wrote referencing "Appeal of Termination of Officer Jason Gorman" that plaintiff, "who is a member of the Army Reserve, has been activated, and will be going on active duty... March 6, 2011" and therefore "cannot be present for the hearing which is currently scheduled for... March 7, 2011." The letter referred to the hearing as a "due process hearing." As it turned out, plaintiff did not deploy on March 6, 2011. But, plaintiff decided not attend the March 7, 2011 hearing because his attorney had already written that plaintiff would not be present at the hearing.

On March 7, 2011, Chris Kelly, the hearing officer, wrote to plaintiff, acknowledging his absence from the hearing and requesting:

In order to substantiate your absence from the hearing it is requested that a copy of the March 6th 2011 military deployment orders be provided to the City. If a copy of the orders is provided in a timely manner the appeal hearing will be continued to a future date after your return. If a copy of the orders is not provided to the City, your recourse via this appeal hearing will be forfeited.

Also on March 7, 2011, Mike Price, the assistant city attorney wrote to plaintiff and his attorney referencing the "Appeal of Termination of Officer ...


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